Student v. Arlington Public Schools – BSEA # 09-2049

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Arlington Public Schools

BSEA # 09-2049

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.

On September 22, 2008, Parent requested a Hearing in the above-referenced matter. The case was later administratively re-assigned to Hearing Officer Rosa Figueroa on January 6, 2009, and the hearing was held on January 26, 2009, at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts. Those present for all or part of the proceedings were:

The official record of the hearing consists of documents submitted by Arlington Public Schools (Arlington) and marked as exhibits SE-1 through SE-15; recorded oral testimony and written closing arguments. Parent did not submit any documents. The record closed on February 9, 2009.

1. Whether Student requires two hours per week of tutoring at the Bedford Learning Center, funded by Arlington, in order to receive a free appropriate public education (FAPE) consistent with state and federal law?

2. Whether a 15 minutes per week regular communication between the Parent and the teachers is necessary (to address Student’s organizational issues) in order for Student to receive a FAPE?

POSITIONS OF THE PARTIES:

Parent’s Position:

Parent seeks an order requiring that Arlington fund a one-hour- per-week math tutorial at the Bedford Learning Center, with Beverly Malcolm. She states that Student arrives home not knowing how to do the math homework, is not able to repeat what he learned in school or demonstrate the math skills learned that day. Parent states that she spends every day trying to show Student mnemonics and other approaches that can help him learn. Parent states that when Student was learning how to read by using the Lindamood Bell approach, she assisted Student by making a board that she took in the car so that Student could review letters and sounds throughout the day everywhere they went. She attributes Student’s ability to learn English/language arts to the thousands of repetitions they practiced. Parent states that Arlington has refused to incorporate Parent in Student’s learning process.

Parent alleges that because Student’s brain is wired differently, he is not able to comprehend the material presented in school with the techniques used there. According to her, when Student comes home she has to start all over again. Parent states that school testing shows that Student is not performing at grade level because of his processing difficulties.

She argues that Student’s progress is insufficient and disputes that he will be able to become an independent student with the support provided in Arlington alone. Parent does not believe that Student has internalized the necessary skills required to be successful next year. His issues with organization and executive functioning skills will interfere with his learning.

According to Parent, in spite of the great amount of time identified in Student’s IEP for math services, these services are insufficient because they are not one-to-one, but rather supportive type services in a large classroom. What Student understands from the classroom, his ability to articulate what transpired in math class, and his interpretation of work assigned to him, continue to be a challenge. Parent states that Student requires the services of Beverly Malcolm, the private tutor, to assist with math as he has significant deficits in this area. According to Parent, Student does not really understand the concepts involved with math but is eager to get things done nonetheless. The time spent with Ms. Malcolm is intended to expand Student’s critical thinking skills. It focuses on helping Student learn how to learn so that he can enjoy school. Ms. Malcolm’s tutorial services are not a duplication of the services offered in Arlington, but rather complimentary and necessary for Student to become a successful independent student.

Parent alleges that Student has become irritable when he has to go to school and when he comes home. According to Parent, he has stated that he does not wish to go to school and would rather stay home. She states that Student has difficulty falling asleep and that he has poor self esteem. In contrast, she states that Student is happy when he has to see Ms. Malcolm and he has stated that he understands things better when she explains things to him.

Parent argues that the education a student receives has to be in an environment that promotes emotional balance and appropriate support for the child, and if the student shows symptoms of depression, then this is evidence of a lack of balance and proper emotional support. Parent is concerned that if Student does not receive the proper supports this year he “will not make it” next year and wonders whether services will be reduced further given that Arlington states that he is making good progress.

Arlington’s Position:

Arlington agrees that Student is eligible to receive special education services but disputes that he requires extended school day services in the form of private tutoring for mathematics in order to receive a FAPE. Arlington asserts that Student is capable of performing grade level math using the strategies taught to him by his teachers in Arlington. Additionally, Student is able to receive help and support in class when he needs it. Arlington states that Student’s report card shows that he has made effective progress, and as such is not being denied a FAPE.

Arlington further argues that were there to be a finding that Student requires after school tutoring, Arlington has the right to assign appropriate educational personnel to provide these services.

Regarding home/school communication, Arlington asserts that the strategies currently in place are sufficient to provide Student a FAPE. Arlington asserts that it has used many strategies to communicate with Parent and has produced no evidence to show that a different form of communication between Arlington and her will result in educational benefit to Student. Arlington states that Parent carries the burden of persuasion and has not met her burden.

FINDINGS OF FACT:

1. Student is a fifth grade, eleven-year-old boy. He resides in the Arlington School District and attends the Dallin School. (SE-2). Due to identified deficits in the areas of attention, focus, writing, and processing visual and mathematical information, he receives special education services. He has been diagnosed with a specific learning disability (Dyslexia) and Attention Deficit Disorder, for which he takes 40 mg of Strattera daily. (SE-4). He has been taking medication for attention deficit disorder since 2003. Student has been described as a friendly and cooperative child who gets along well with others, and enjoys playing basketball, karate and riding his bike. Student’s verbal ability falls within the average range, while his visual spatial ability is in the below average range. (SE-2).

2. In the past, Student has received specialized instruction in reading outside the classroom, counseling services to address social/emotional issues, reading and math support. (SE-2).

3. Student’s Team met on June 16, 2008. (SE-1). This IEP, which covered the period from June 16, 2008 through June 15, 2009 calls for a once-per-week, fifteen-minute consultation with the special education teacher; three-times-per week, sixty minute, direct services in math in the general education classroom, by the special education teacher; and five-times-per-week, ten minute, organization and study skills services in the general education classroom, by the special education teacher. (SE-2). Additionally, under direct services in other settings, Student receives twice per week, forty minute, language arts services by the special education staff, and twice per week, thirty minute, math services by a special education assistant. ( Id. ) Student’s IEP also includes numerous accommodations, to wit:

Use simple brief directions.

Oral directions should be accompanied by visuals whenever possible.

Emphasize key words when speaking and writing.

Provide outlines, graphic organizers and other visual aids.

Explicit instruction in how to interpret visual material- outlines, organizers, work-sheets should be accompanied by visual explanation/modeling.

Encourage [Student] to ask for repetition or clarification of visually and verbally presented information when needed.

Check in frequently with [Student] to make sure he correctly understands the instructions- have him paraphrase them to ensure comprehension.

[Student] should be seated close to the teacher and away from distractions. Frequent motor breaks, opportunities for interactive learning and role play.

Additional time for homework, projects and tests, calendar grids for homework organization and planning.

Checklists for routines and writing assignments.

Highlighter for key words (more than, less than) in story problems and open responses questions.

Writing software (Type To Learn, CoWriter, Write Out Loud) and spell-checker turned on without providing choices to visually highlight errors.

Testing :

Small group

Separate setting

Teacher reads and clarifies general testing directions

Teacher assists student in tracking/redirects attention to the test

Graphic organizers

Place marker

Math reference sheet

Additional accommodations included preferential seating, private positive feedback for attending and staying on task, providing marked transitions between activities “by clearly defining the new activity and clearly explaining the sequence of steps needed to complete it”, as well as “self-scoring for writing assignments and self-rating scales to encourage self-monitoring and metacognitive strategies.” (SE-2)

4. During the spring of 2007, while in the third grade, Student participated in the MCAS obtaining a score of proficient in English language arts, and needs improvement in math. (SE-2; SE-5). In the spring 2008 MCAS, he obtained a needs improvement for both English language arts and mathematics. (SE-5).

5. Dr. Wallis Raemer, Dallin School principal, knows Student as he attends his Team meetings and consults with the classroom teacher. She noted that Student did well on the multiple choice (76%) portion of the fourth grade MCAS, involving math problems, which indicated that he understood the problems presented in the test. She, however, displayed weaknesses in the open response portion of the test. She partially attributed this difficulty to Student’s weakness in writing. (Testimony of Dr. Raemer). Dr. Raemer agrees that Student has issues with fact automaticity and math fluency and that he continues to need support in these areas. She opined that overall Student is able to access the curriculum, and is making effective progress in Arlington under his current IEP, and stated that the combination of in-class support, pull-out services and after-school assistance in Arlington are sufficient to afford him a FAPE.

6. Student’s IEP notes that he asks for help when he needs it and that he has been observed to implement the strategies he is taught. (SE-2). Student is described as a slow and methodical worker who is able to demonstrate grade level skills with support. (SE-2).

7. The IEP was forwarded to Parent on September 5, 2008. (SE-1). Parent rejected the IEP in part on September 15, 2008, because she wished to meet with the teacher for 15 minutes every week to review the issues that came up regularly, and she also requested that Dr. Gorley provide Student two hour weekly reinforcement. (SE-2). Parent also requested a hearing with the BSEA.

8. After Student’s IEP was proposed, additional blocks of mathematics were added to the fifth grade schedule at the Dallin School. During math class Student receives in-class support. (Testimony of Ahlborn).

9. Following the resolution session held on September 23, 2008, Mark Ryder, Director of Special Education in Arlington, wrote to Parent on September 30, 2008. (SE-3). As a result of the meeting, Arlington agreed to have Student’s teacher review his homework at the end of each day, especially in math, and request that Student clarify his understanding of said homework; additional assistance would be provided on Mondays and Wednesdays after school; Ms. Ahlborn would offer Parent a five-minute check-in on Mondays at 3:00 p.m.; Student would keep track of how much time he was spending on each homework assignment; Student was encouraged to tell teachers when he required additional time to complete assignments as had been done, and he would be allowed additional time to complete his homework without consequences. Arlington, however, did not agree to cover the cost of the private math tutoring requested by Parent. (SE-3).

10. On September 26 and October 29, 2008 Student was evaluated by Eleanor Ahlborn, M.Ed., special educator in Arlington. (SE-4; SE-11). This evaluation attempted to ascertain whether Student could make effective progress in his Arlington program without the support of private tutoring. The report notes that Student did not attend the Bedford Learning Center during the summer 2008 but resumed work there on September 30, 2008. According to Ms. Ahlborn, there was a substantial discrepancy between Student’s performance in and outside of school regarding retention of information and ability to communicate his understanding of the information to those who work with him outside school. (SE-4).

11. Ms. Ahlborn administered informal assessments by using portions of the Math4Today tests and the Woodcock-Johnson III Tests of Achievement-Math subtests. (SE-4). The evaluator observed that Student demonstrated good effort but required multiple verbal cues to return to task when he appeared to shift his focus of attention from the test to the environment around him and solved problems within 10 to 20 seconds. ( Id. ). According to Ms. Ahlborn, Student’s effort reflected what he is capable of doing when he has a good day in school and is able to attend to task to the best of his ability. She noted discrepancy between Student’s calculation and applied problems performance and with performance with simple one-digit problems of mixed addition and subtraction. Previous WISC IV testing showed below average processing speed and mild word retrieval issues. (SE-4).

12. Student’s Broad Math clusters in the Woodcock-Johnson III Tests of Achievement yielded the following scores:

Student was ten years old, beginning the fifth grade, at the time of this evaluation. (SE-4).

13. Ms. Ahlborn noted that Student presented with difficulties with executive processing skills which she found to be typical in students diagnosed with ADHD. Test results showed that Student experienced significant challenges with cognitive flexibility and math fact automaticity, that is, the ability to quickly retrieve information, as is required when solving problems with multiple operations signs which require shifting mental processes to solve the new problem. When presented with math tasks in a distraction-free, quiet, structured atmosphere with visual supports, and where the adult waits until he attempts the task independently, putting forth best effort, Student demonstrated age and grade level grasp of fourth and fifth grade math concepts. (SE-4).

14. An analysis of Student’s strengths and needs was provided by Ms. Ahlborn who also suggested techniques to be used in math. She found Student to possess average to above-average problem solving ability. He was able to be motivated and an active participant in class, especially when he had taken his medication and had enjoyed adequate sleep. (SE-7). He did best when problems were placed in a context that he could understand. He required assistance of an adult to assist him in staying focused. She recommended that Student increase his practice of math facts so that they would become more automatic and help him move along the process of computing the fact without losing track of where he was when solving complex problems. Lastly, Ms. Ahlborn noted that to develop his cognitive flexibility and fluency, student required

A math teacher and tutor who can team easily and frequently, who are knowledgeable and trained in the school’s TERC curriculum, and who can supplement or modify approaches given [Student’s] constellation of learning styles. A variety of approaches are used by the learning center teacher in addition to TERC including: Everyday Math, Cloud Nine, as well as approaches by Burns and Van De Walle. Meta-cognitive strategies are discussed with [Student] in an effort to bolster his independence, self-esteem, and flexibility. Games requiring mental speed and flexibility such as Blink have also been used, in addition to the approaches mentioned above. (SE-7).

This document was intended to provide Parent strategies to be used in the home. (Testimony of Ahlborn).

15. Student’s math teacher provided an overview of Student’s participation through November 3, 2008 and effective techniques to assist him in math. (SE-6). In math class, his performance was related to his ability to maintain focus and attend to task. The teacher noted that Student attended three of the six after school Wednesday math sessions offered from 2:45 to 3:00 p.m. In these sessions, Student responded better when working one-to-one with the teacher or when working in small groups. He was noted to be able to display his knowledge of the material. (SE-6) After-school math services are offered by Ms. Ahlborn or Student’s math teacher. (Testimony of Ahlborn). Regarding homework, some was found in his folder, completed but not turned in, triggering establishment of a new routine which proved successful in getting Student to turn in his homework on time. When on time, homework was thorough and correct. (SE-6).

16. A schedule of Student’s special education services to be followed daily appears at SE-8. In addition to reflecting the times when Student is educated in the regular education classroom, this schedule includes instructions regarding placing all homework assignments in a personalized bin on the homeroom teacher’s desk every morning. On Mondays, Student receives a half hour support in math, a half- hour writing support, fifteen-minute homework organization assistance, and forty-five minutes after-school math help in addition to assistance from the special education teacher during math class. On Tuesdays, Student receives a half-hour math support with the special educator and another student, in-class support in math, and fifteen-minute homework organization assistance. Wednesdays include a half-hour math support, assistance in math class, fifteen-minute homework organization assistance, and forty-five minutes after school help with the math teacher. On Thursdays, Student receives a half-hour, extra help (time for students to consult with subject-area teachers regarding missing assignments or to seek additional support), in-class math support by the special education teacher, and fifteen-minute homework organization assistance. After placing his homework in the designated bin, on Fridays Student receives a half-hour math support with the special educator and another student, pull out writing support in a small group with the special educator, and fifteen-minute homework organization assistance. (SE-8).

17. To assist with organizational issues, Student keeps an agenda book which he takes back and forth between school and home. Every day Ms. Ahlborn checks the book to ensure that all assignments are written down. She also checks to see that Student understands what is expected regarding his homework assignments and to ensure that he has the materials he requires to complete homework. (Testimony of Ahlborn, Connor). Ms. Ahlborn and Ms. Connor also check to make sure that Student has completed the homework and occasionally look through his bag to make sure that he turns it in. On days when homework is not completed, Ms. Ahlborn indicates with an arrow that it needs to be completed for the next day. According to her, Student tends to make up homework over the weekend when he is at his father’s house. When he is with his father during the weekdays, Student’s homework is turned in on time. (Testimony of Ahlborn, Connor).

18. Student’s progress reports for the period from November 21, 2008 to January 9, 2009 show that Student continued to be inconsistent with completing or turning in homework assignments for most classes, except for math where marked improvement was noted. (SE-9). By January 9, 2009, his social studies teacher expressed concern that if Student continued to fall behind in turning in homework in that class, he could become overwhelmed. It was also noted by his math teacher that he did not always ask for help when he needed it even when encouraged to do so by the teacher and peers. In general, Student seldom participated in class and his attention/focus was variable. (SE-9)

19. During the first term of the 2008-2009 school year, Student’s fifth grade, he obtained grades ranging from B to C- for all content areas (English/language arts, science, math, social studies, health) and an A in art and physical education. (SE-9). In work habits, involving homework/ assignment completion, organization of materials and time management, ability to follow directions, completion of work in a neat and careful manner, writing legibly and following directions, he obtained a D. ( Id. ). His report card for fifth grade also shows that he was absent seven (7) times and tardy another seven (7) times. (SE-12; SE-15).

20. The fifth grade math quiz scores reflect that Student knows and understands the vocabulary, could identify numbers as prime, composite, factors and multiples; participated in class when focused; was completing his homework; and attended afterschool sessions when in school. The quiz scores were 5/5 and 11/11 in fractions, 10/10 common factors, and 17/21 mean, median, range. (SE-14).

21. When breaking down Student’s overall math grade for the 2008-2009 school year, Student had a B in Computation and Operations, and a B in Number Sense. He also received a B for computation, problem solving, prime time unit, vocabulary and mystery number puzzles. (SE-12).

22. In the fifth grade district wide math assessment, administered during the fall of 2008, Student received 100%. (SE-13). According to Ms. Jill Connor, Student’s classroom teacher, only three other Students received a perfect score on that test. (Testimony of Ms. Connor). Ms. Connor reviewed the class scores for the district wide assessments in math, administered several times per year, and noted that Student was working at grade level. (SE-13; Testimony of Ms. Connor). The chart reflecting Student’s scores shows that his percentages ranged from 60.3% to 96.7%. (SE-13).

23. In an attempt to resolve the case prior to hearing, Arlington offered to provide Student one of the two hours weekly of math special education tutoring after school. Arlington expected the tutor to consult regularly with Student’s teachers to coordinate math instruction. Previously, Arlington had agreed to implement weekly communication between Student’s mother and his teacher. (SE-10).

24. Student has attended the Bedford Learning Center once a week for one hour to receive math tutoring. His teacher, Beverly Malcolm, holds a Master’s degree in special education, and has had extensive experience as a teacher, including teaching children with moderate special needs. (SE-4; Testimony of Parent, Malcolm). She testified that Student requires significant support in math. In the past, she has used Simple Math but is not currently using this program and no further information regarding the methodology used at this time was offered. Her goal is to help Student become an independent learner and to help him feel comfortable with what he can do. According to her, Student is not performing at grade level regarding the math skills they are working on, and lacks automaticity regarding multiplication tables and division, something that will impact upon his ability to perform fractions. She, however, has not conducted any formal testing. She believes that at the beginning of fifth grade, Student was performing at above the 2.4 grade level and knew multiplication tables from one to five with automaticity and division up to the table of 6. (Testimony of Malcolm).

25. According to Ms. Malcolm, Student’s attentional issues, distractibility, and difficulties with paper/pencil work require that he expends substantial energy to get things done. Student enjoys working with computers, something Ms. Malcolm integrates into her tutorials. (Testimony of Malcolm).

26. Ms. Malcolm testified that when she first meets with Student, she asks him what they did in math class that day and eighty percent of the time Student says he does not remember. She prompts Student for learned concepts and works on completing homework material that the school staff indicates needs to be finished. She opined that Student would benefit from additional sessions with her. (Testimony of Malcolm).

27. Ms. Malcolm has not observed Student in his Arlington program this year. In her opinion her tutorial sessions offer Student benefit over and above what Arlington provides. (Testimony of Ms. Malcolm).

28. Ms. Malcolm communicates regularly with Arlington’s staff and acknowledged receiving weekly reports from Ms. Connor which she found to be detailed and helpful. Via email, she also communicates with Ms. Ahlborn to discuss the math curriculum. Overall, Ms. Malcolm described her communication with Arlington staff as “fantastic.” (Testimony of Malcolm).

29. Ms. Ahlborn has provided Parent and Ms. Malcolm programs, strategies and tools to help address Student’s slow processing issues. To this end, she has also shared games such as BLINK. (SE-7; Testimony of Ms. Ahlborn).

30. In Arlington, Student has not been observed to use strategies other than the ones taught to him there. According to Ms. Ahlborn, the only strategies he has been observed to use in math were those taught to him by her such as: highlighting, underlining key words and the ballet slipper method for solving multiplication problems. (Testimony of Ahlborn).

31. Student testified that he understands what is explained to him in school most of the time. He finds the work he does with Ms. Malcolm helpful and he understands things better when she explains them to him. He found her explanations to be more helpful than when Parent or the teachers explained things. (Testimony of Student).

CONCLUSIONS OF LAW :

The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act2 (IDEA) and the state special education statute.3 As such, Student is entitled to a free, appropriate public education (FAPE).4 The dispute between the Parties is whether Student requires two hours per week of after-school tutoring in a private facility at Arlington’s expense, in order to receive a FAPE, and whether the communication between Arlington and Parent is sufficient. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.

The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs5 in a way reasonably calculated to enable the student to make meaningful6 and effective7 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.8 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .9 Educational progress is then measured in relation to the potential of the particular student.10 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.11

As the party challenging the adequacy of Student’s IEP services, seeking to increase them by way of public funding of after-school private tutoring and an increase in home-school communication, Parent carries the burden of persuasion pursuant to Schaeffer v . Weast , 126 S.Ct. 528 (2005)12 . For the reasons stated below, I find that the evidence does not support Parent’s request and that she has failed to meet her burden of persuasion.

Public funding of private after-school tutoring :

The first issue to be decided is whether Arlington is responsible to fund two hours per week of after school math tutoring at the Bedford Learning Center in order for Student to receive a FAPE. In this regard, Parent argues that Ms. Malcolm’s tutorial services are not a duplication of the services offered in Arlington, but rather complementary and necessary for Student to become a successful, independent student. Parent states that Student is happy when he sees Ms. Malcolm and he has stated that he understands things better when she explains them. (Testimony of Parent, Student).

Arlington argues that Parent’s request is equivalent to provision of an “extended school day” program and disagrees with Parent that it is essential for Student to receive a FAPE. Arlington correctly states that these services must be considered in the same manner in which the Team considers any other service for Student. The question then is “what educational and related services are necessary to provide Student with a FAPE, and whether the provision of such services requires that they occur outside of the regular school day.” In Re: Shrewsbury Public Schools , BSEA #08-2466 (MA SEA 2008, Crane); see also, In Re: Dedham Public Schools , BSEA #00-3591 (MA SEA 2000, Crane)(denying the parent’s request for tutoring where the student was working on grade level and school staff was readily available to provide the necessary support).

By June 2008, while Student had shown significant improvement in math and writing, he continued to require support and specialized instruction in both areas. The plan developed by Arlington proposed math services for a total of 300 minutes per week in and out of the general classroom, writing for 2 x 40 minutes per week, and organizational support during a check-out time for 5 x 15 minutes per week. (SE-1). Parent accepted these services while rejecting the plan in part, seeking additional services. Under the aforementioned plan, Student receives services on a daily basis from Jill Connor and Eleanor Ahlborn, both of whom are experienced teachers who have worked with students with special needs. (SE-11; Testimony of Connors).

Following development of the fifth grade IEP, Arlington added math blocks to the fifth grade curriculum. With the additional math blocks, Student receives math practice and support in addition to that reflected in his IEP. (Testimony of Ahlborn). Ms. Malcolm reviewed Student’s school schedule and opined that it offered Student significant support in math. (Testimony of Malcolm).

In response to Parent’s concern that Student required additional tutoring services, Ms. Ahlborn conducted Student’s math evaluation in September 2008. She noted that Student’s overall skill development, especially in the area of applied problems (86%) and math reasoning skills (73%), fell above-grade level. Broad math scores (63%) and calculation skills (61% and 34% placing him between the mid fourth grade and end of the fifth grade) fell in the sixtieth percentiles. Math fluency (5%) as measured by the Woodcock-Johnson subtest, was an area of weakness. Here, Student scored dramatically lower than in any other parts of the test. Regarding the discrepancy in the scores, Ms. Ahlborn explained that the fluency test was a timed test which required Student to solve several rows of simple math problems within a short period of time (three minutes). According to her, Student worked slowly, was distracted at least once requiring re-direction, and therefore could not finish all of the problems. She testified that this was consistent with Student’s profile. (Fact 1) She also noted that Student got two problems wrong because he misread the operation signs. Notwithstanding these difficulties, she opined that when Student was tested at the end of September 2008, he had recouped eighty percent (80%) of the material learned in the fourth grade. (Testimony of Ahlborn).

The math assessment completed by Ms. Ahlborn also showed that Student possesses good math skills overall, although he continues to have difficulties with math fluency. (SE-4). Ms. Ahlborn stated that fluency scores were not the only indicator of Student’s math ability and pointed out that he did well in other areas (computation, applied problems and quantitative concepts). (SE-4; Testimony of Ahlborn). He also obtained high scores in math reasoning and broad math. (SE-4). She explained that the reason the math fluency score was lower was that the test was timed, Student processes information slowly, he missed two operation signs, and he was briefly distracted believing that he was supposed to be somewhere else in the building. She further opined that while processing issues were difficult to remediate, with additional drills, progress could be made. (Testimony of Ahlborn). According to Ms. Connor, there are programs available to Student within Arlington that can assist with automaticity of math facts. (Testimony of Connor). The record also supports a finding that Student’s fourth and fifth grade achievement test scores show that he is capable of grade level math, and his fifth grade report card shows that he has earned a B in math. (SE-9; SE-12; SE-13; SE-14).

All who testified agreed that although Student has a disability which impacts math performance, he has made progress and has acquired skills that allow him to perform at grade level at this time. Clearly, he will continue to require the level of support provided by Arlington. (Testimony of Malcolm).

Ms. Malcolm and Parent shared their concern that Student is having difficulty keeping pace with the fifth grade curriculum and while he has improved his skills, he is not as comfortable as he should be. As material continues to become more challenging, they fear that he will fall further behind. (Testimony of Malcolm, Parent). Ms. Malcolm opined that Student has much more work to do before he feels comfortable. While she recognizes that Arlington offers him a reasonable amount of support and services, she is concerned as to what is working for him and what is not, as she opines that he should be doing better than he is doing. In her opinion, Student’s progress is slow and laborious. (Testimony of Malcolm).

Ms. Ahlborn, who has worked with Student in Arlington over the past two years, testified that the only strategies she has observed Student apply when solving math problems are strategies taught to him in Arlington such as: highlighting, underlining key words and the ballet slipper method for solving multiplication problems. (Testimony of Ahlborn).

Ms. Malcolm testified that it was difficult for her to know what was happening in the classroom as she has not visited or observed Student in said environment. She, however, believed that he requires the level of support provided by Arlington and that he was benefitting from services rendered there. (Testimony of Ms. Malcolm). Ms. Ahlborn has provided Parent and Ms. Malcolm programs, strategies and tools to help address Student’s slow processing issues. To this end, she has also shared games such as BLINK. (SE-7; Testimony of Ms. Ahlborn).

Student testified that he understood the math taught in Arlington most of the time and that he found the tutoring sessions at the Bedford Learning Center helpful. According to Ms. Malcolm, Student would benefit from additional sessions with her, because the “luxury” of one-to-one sessions was different from what happened in other settings and provided Student with a different perspective, and a broad approach that was multi-level. (Testimony of Ms. Malcolm).

The evidence supports a finding that Arlington’s program affords Student a FAPE. All agree that his disabilities impact upon his performance. As such, he continues to require the level of support offered to him in Arlington both through regular and special education services. The evidence further shows that the tutorial services offered to him by Ms. Malcolm are beneficial but not necessary to afford Student a FAPE. Ms. Malcolm’s description of her tutoring services as a “luxury”, is something that goes above and beyond FAPE; since the standard in Massachusetts is FAPE, that is, the public school is not responsible to offer Student the equivalent of a “ Cadillac , but rather a serviceable Chevrolet that allows him to get around effectively.” In Re: Arlington Public Schools, 8 MSER 187 (Crane 2002); In Re: Middleborough Public Schools, 12 MSER 310 (Figueroa, 2006). Allowing Parent’s request in light of the evidence would be the equivalent of providing Student a Cadillac , something Arlington is not responsible to do.

Having concluded that Student does not require after-school math tutoring at the Bedford Learning Center in order to receive a FAPE, I need not address the question of Arlington’s right to assign personnel to provide said services.

Increase in Communication:

Parent alleges that the level of communication between her and Arlington is insufficient. Parent argues that insufficient communication between her and Arlington results in her inability to oversee completion of homework at home.

She wants to know what Student did during the day and what part of the Student’s homework needs to be completed. She also requests that homework be explained to her and examples be provided so that she can teach her son at home. She also requested that a designated person go through Student’s folder to look for completed homework he may have forgotten to turn in.

According to Ms. Connor, the teachers’ expectation regarding homework is that Student will complete as much as he can and that he speaks to the teacher when he has difficulty. In a discussion with Dr. Raemer, Student was also instructed to identify questions he had and problems he was unable to solve regarding homework and relate this back to the teacher. (Testimony of Raemer).

Student has been provided an agenda book which he takes between home and school. Both Ms. Ahlborn and Ms. Connor assist him daily in maintaining the agenda. They were confident that when Student left school he had his agenda with the assignments and the materials required to complete his homework. Overdue assignments are also reflected in the agenda. They were also confident that Student understood the homework and what was required of him. (Testimony of Connor, Ahlborn).

Additional accommodations regarding homework were offered at the Resolution Meeting, as reflected in the letter forwarded to Parent on September 30, 2008. (SE-3). Additionally, following a Pre-Hearing Conference with the prior hearing officer, the Parties agreed to an increase in communication between them. This included weekly reports prepared by Ms. Connor for Parent and Ms. Malcolm, initiated in November 2008. (SE-9; Testimony of Connor). The weekly progress reports are broken down by subject. (SE-9). Ms. Connor testified that she spent approximately ten minutes per day taking notes to prepare the reports. She spent up to one-hour-per-week preparing the reports which Ms. Malcolm found to be detailed and helpful. Ms. Connor also updates the classroom website, which contains information regarding homework assignments and instructions, on a daily basis. Ms. Ahlborn and Ms. Connor testified that while they received little response from Parent regarding what homework Student was able to complete, homework was turned in on time and was made-up on days when Student stayed with his father. (Testimony of Ahlborn, Connor).

Ms. Malcolm testified that she found her communication with Ms. Ahlborn and weekly communication with Ms. Connor to be detailed and very helpful. Overall, Ms. Malcolm described communication between her and Arlington’s staff as “fantastic.” She testified that Ms. Ahlborn was very responsive, but she was cautious not to overburden Ms. Ahlborn with requests for information.

Parent was also provided an opportunity to meet with Ms. Ahlborn on afternoons when she picks up her son from the after-school tutoring sessions, but she has been inconsistent in availing herself of this opportunity. (Testimony of Ahlborn). Ms. Ahlborn testified that she has provided Parent a list of strategies and had discussions of strategies when they have met, but Parent has not followed them. According to Dr. Raemer, Parent can also attend curriculum night. (Testimony of Raemer).

Dr. Raemer and Ms. Connor testified that they have consistently responded to Parent’s inquiries whether via email, or other means within twenty-four hours or less of receiving the inquiry.

Parent explained that because she learned math in a different manner than is being taught to Student, she was unable to help him with his homework and therefore required that Arlington explain to her what Student is learning and provide her with examples. She further explained that Student requires a lot of practice and drills and that if he received this, he was able to do well. Parent failed to show how it is Arlington’s responsibility to teach Parent so that she can teach Student at home. Arlington correctly points out that ultimately, the school’s direct responsibility is to teach and service Student. As Mr. Mark Ryder, director of special education pointed out, the strategy is not to teach the parent to teach the child. (Testimony of Ryder). Parents can attend math night to understand the curriculum better.

The evidence supports a finding that the current communication arrangements between Arlington and Parent are adequate and sufficient.

ORDERS:

1. Arlington is not responsible to fund Student’s after-school private tutoring at the Bedford Learning Center.

2. The current communication arrangement between Parent and Arlington is found to be sufficient.

The issues for hearing were clarified and later memorialized in an order dated December 4, 2008 which was issued by the previous hearing officer assigned to this matter. In her request for hearing, Parent also sought a once-per-week fifteen minute meeting with Student’s teachers to review homework, and she also requested copies of all of Student’s books to be used in the home.

E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).

MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).

E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)

About Special Education Law

Special Education Law (specialedlaw.com) is a free search engine for Massachusetts Bureau of Special Education Appeals (BSEA) decisions and rulings. It was created by Attorney Daniel S. Perlman and is maintained by Moor, Perlman and Gregg, LLC as a resource for parents, advocates, educators, and attorneys.

You can earn more about Attorney Perlman and his partners at www.mpgfirm.com.